THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Stinnett v. Weno ,
6 FSM Intrm. 478 (Chuuk 1994)

[6 FSM Intrm. 478]

CHRISTINA STINNETT, d/b/a TRUK STOP,
RAYMOND SETIK d/b/a CHRISTOPHER INN,
KATCHUTOSY PAULUS and
TRUK CONTINENTAL HOTEL, INC., a corporation,
Plaintiffs,

vs.

WENO MUNICIPALITY,
Defendant.

CIVIL ACTION NO. 1992-1036

MEMORANDUM

Richard H. Benson
Associate Justice

Decided:  August 25, 1994

APPEARANCES:
For the Plaintiff:          R. Barrie Michelsen, Esq.
                                     Law Offices of R. Barrie Michelsen
                                     P.O. Box 1450
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Maketo Robert, Esq.
                                     P.O. Box 243
                                     Weno, Chuuk FM 96942

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HEADNOTES
Federalism ) Abstention and Certification
     The circumstance that decisions of the Appellate Division of the Chuuk State Supreme Court may be appealed to the Appellate Division of the FSM Supreme Court and the method chosen by the sovereign State of Chuuk to select members of their appellate panels will not foreclose the FSM Supreme Court trial division from certifying a question to the Chuuk State Supreme Court Appellate Division where there are other elements in favor of certification.  Stinnett v. Weno, 6 FSM Intrm. 478, 479-80 (Chk. 1994).

Federalism ) Abstention and Certification
     Certification of questions to a state court is appropriate where the decision of the state court on state law may be dispositive, eliminating the need to address the FSM Constitutional issues and where important questions as to the source of authority of one of its political subdivisions to

[6 FSM Intrm. 479]

impose a tax and the nature of the exercise of municipal taxing authority are involved.  Stinnett v. Weno, 6 FSM Intrm. 478, 480 (Chk. 1994).

Federalism ) Abstention and Certification
     Considerations of federalism and local self-government lead to the utility of certification.  Stinnett v. Weno, 6 FSM Intrm. 478, 480 (Chk. 1994).

Federalism ) Abstention and Certification
     Certification to a state court does not prevent the FSM Supreme Court from addressing the FSM constitutional issues if that becomes necessary.  Stinnett v. Weno, 6 FSM Intrm. 478, 480 (Chk. 1994).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     Today, I signed a Request that Certified Questions of Law be decided by the Appellate Division of the Chuuk State Supreme Court.  This memorandum gives my reasons for certifying those questions.

     At issue is the validity of a Weno Municipal Ordinance imposing an annual fee of $100.00 per room on hotels.

     The plaintiffs allege that the Municipal Ordinance violates the FSM and Chuuk State Constitutions.  As to the FSM Constitution, the plaintiffs' position is that the ordinance imposes a tax, on income, an exclusive right of the national government, is a restriction on interstate commerce, and violates plaintiffs' due process and equal protection rights.

     As to the Chuuk State Constitution, the plaintiffs contend that the arbitrariness of the ordinance violates their due process rights and that the ordinance is invalid since there has been no delegation of the taxing power by the state to the municipality.

     Because the case raises Chuuk State Constitutional questions about the validity of an ordinance, I invited and received the views of counsel on the possibility of certifying those issues to the Appellate Division of the Chuuk State Supreme Court.

     Counsel raised a number of factors against certification:  the additional time and expense required before a decision is made; and the circumstance that decisions of the Appellate Division of the Chuuk State Supreme Court may be appealed to the Appellate Division of the FSM Supreme Court and are thus not final.  Counsel also argued that since a panel of the Appellate Division of the Chuuk State Supreme Court is made up of one Chuuk State Supreme justice and two temporary justices selected from the FSM Supreme Court or from another state court or qualified attorneys from Chuuk, Chk. Const. art. VII, 5(b), two members of the panel, when appointed, might be unfamiliar with Chuuk laws and its Constitution.

     Unquestionably, and regrettably, certification would require added time and expense for the parties.  As to the other factors ) that the Appellate Division may be appealed, and the makeup of the panel ) a comment is in order.  These are the provisions that the people of the sovereign State of

[6 FSM Intrm. 480]

Chuuk freely chose to adopt in their Constitution.  So if other elements are present militating in favor of certification the makeup of panel and finality of the opinion should not foreclose certification.

     Article VII, section 6 of the Chuuk Constitution provides for certification to the Appellate Division of the Chuuk State Supreme Court from inferior state courts or municipal courts of questions requiring the interpretation of the Chuuk Constitution.  This supports the conclusion that certification from this court to the Chuuk State Supreme Court Appellate Division is appropriate in suitable cases.

     The state law presented as to the hotel tax are questions of first impression. The decision of the state court may be dispositive, eliminating the need to address the FSM Constitutional issues.  Gimnang v. Yap, 5 FSM Intrm. 13, 21 (App. 1991).  Although the state itself is not a party, the issues involve important questions as to the source of authority of one of its political subdivisions to impose a tax and the nature of the exercise of municipal taxing authority.  Thus the considerations of federalism and local self-government lead to the utility of certification.  Hadley v. Kolonia Town, 3 FSM Intrm. 101, 103 (Pon. 1987). Certification does not prevent this court addressing the FSM constitutional issues if that becomes necessary.

     I feel that failing to certify these state issues and deciding them myself would be an undesirable intrusion into state and local matters.

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